Judge Posner Checks Patrick Fitzgerald

If U.S. Attorney Pat Fitzgerald was still thinking about appealing the light sentence given Fast Eddie Vrdolyak, a ruling in an unrelated appellate case last week might have changed his mind.

Fitzgerald had appealed a lenient sentence in a case of consumer fraud, with the result that Judge Richard Posner actually ordered the defendant acquitted, adding a rebuke to prosecutors that was, even for Posner, sharply worded.

Fitzgerald’s spokesman told me that the Vrdolyak matter is “still under review” and he had no comment on Posner’s ruling.

Vrdolyak, after pleading guilty in a $1.5 million financial fraud, was sentenced last month to five years’ probation and a $50,000 fine. The 84-year-old trial judge not only set Vrdolyak free but practically offered to wash and wax his limo.

Fitzgerald has been putting our political crooks behind bars for more than eight years now. His record was nearly perfect until Vrdolyak walked. Fitzgerald said he night appeal the leniency of sentence.

In a decision last Thursday that drew no media coverage—but then, we can’t expect our newspapers to cover the news any more—Judge Posner accused Fitzgerald’s office of “a pattern of improper argumentation in this litigation that does no credit to the Justice Department.” Writing for a unanimous three-judge appellate panel, Posner called for “an appropriate sanction” for prosecutorial misconduct in the case.

The scolding was all the sharper because Posner does not have a reputation for siding with criminal defendants. His reputation is that of a public intellectual of the “law and economics” school who writes a book or two or three every year.

Here’s the background. In May 2003, Charles Farinella bought 1.6 million bottles of Henri’s Salad Dressing. The label on the bottles said “best when purchased by” a date ranging from January to June 2003. Farinella pasted over these labels with new ones changing the date to May or July 2004. Then he sold the bottles to dollar stores.

In July 2006 Farinella and a codefendant, Ross Marks, were charged with wire fraud, product tampering and violating the Food, Drug and Cosmetics Act. Marks pleaded guilty and was sentenced to 2½ years. Farinella was convicted by a jury. A judge sentenced him to five years’ probation and a $75,000 fine. Fitzgerald appealed the leniency of sentence.
Civil libertarians often accuse prosecutors of abusing the wire fraud, mail fraud and racketeering statutes. Posner, who has expressed skepticism of “theft of honest service” charges hinged on mail fraud or wire fraud, does not address those issues in the Farinella case. Instead, he said the government improperly argued a “threadbare case” based on a bureaucrat’s testimony that was “not just improper and inadmissible but incoherent.”

An assistant U.S. attorney told the jury, “Ladies and gentlemen, don’t let the defendant and his high-paid lawyer buy his way out of this.” Any defense attorney in the country would have jumped to object to that; Farinella’s did so and was sustained. Then the prosecutor said, “You have to earn justice. You can’t buy it.” Another objection, sustained again.

Posner wrote that the trial judge “should have made clear to the prosecutor after sustaining the first objection that one more false step and he would declare a mistrial. . . . [H]ad the government presented enough evidence to sustain a conviction, we would have reversed the judgment and ordered a new trial on the basis of the prosecutor’s misconduct.”

Because Posner directed an acquittal on all counts, the issues of sentencing and prosecutorial misconduct were “academic.” However, he urged “an appropriate sanction” for such misconduct and observed, “The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to. We are not impressed by the suggestion.”

So—a rare setback for U.S. Attorney Fitzgerald. But questions about what exactly the law means by mail fraud, wire fraud, racketeering, and “honest services” remain unresolved after decades of court actions.